FMRR Development v. Birdsboro Municipal Authority

43 Pa. D. & C.5th 376
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 10, 2015
DocketNo. 13-16623
StatusPublished

This text of 43 Pa. D. & C.5th 376 (FMRR Development v. Birdsboro Municipal Authority) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FMRR Development v. Birdsboro Municipal Authority, 43 Pa. D. & C.5th 376 (Pa. Super. Ct. 2015).

Opinion

SPRECHER, «/.,

— Defendant appeals the verdict docketed on October 7, 2014, which found in favor of plaintiffs and against defendant. This opinion is filed pursuant to Pa. R.A.P. 1925 and supplements the opinion which accompanied the verdict.

FACTS

Plaintiff, FMMR Development, and plaintiff, Francis X. McLaughlin, filed lawsuits against defendant, Birdsboro Municipal Authority. Plaintiff, Francis A. McLaughlin, is a fifty percent shareholder of plaintiff, FMMR Development. The issues and evidence are the same in both cases, and they were consolidated.

Plaintiffs own residential apartment buildings in the Borough of Birdsboro. The properties are connected to the water supply and sanitary sewer system of defendant, Birdsboro Municipal Authority. These properties have twenty or twenty-one residential apartments. Defendant installed single water meters in each apartment complex, but assigned approximately twenty Equivalent Dwelling Units (EDUs) to each residential apartment building.

Defendant’s tiered metered rate schedule is comprised [379]*379of three components:

1. Ready-to-serve charge — $15.68 per consumer unit per quarter
2. EDU charge — $3.50 per 1,000 gallons of usage for a domestic establishment
3. Consumption charge — $4,992 per 1,000 gallons up to “quarterly average” of 15,000 gallons per quarter. The consumption rate for water consumed in excess of the quarterly average increases to $7,462 per 1,000 gallons up to a level twice the quarterly average.

The metered rate schedule for sanitary sewer services includes:

1. Ready-to-serve charge — $21.62 per consumer unit per quarter
2. EDU charge for sewer services — $6.8822 per 1,000 gallons of usage for a domestic establishment
3. Consumption charge — $7,215 per 1,000 gallons up to quarterly average of 15,000 gallons per quarter.

Despite the fact that defendant has assigned 20 EDUs to the apartment complexes and has consistently imposed a ready-to-serve charge on twenty EDUs and twenty EDU charges on each apartment complex, it has imposed a single EDU consumption rate on plaintiffs in order to apply the higher charges for consumption in excess of the quarterly usage.

Mr. McLaughlin called the Borough Manager, Aaron Durso about the consumption charges. Mr. Durso helped him to file formal complaints for the two apartment complexes. Mr. McLaughlin received a letter from defendant’s solicitor stating that the bills were correct. Mr. [380]*380McLaughlin also went to three water authority meetings and did not obtain any relief.

Mr. McLaughlin requested that individual meters be installed at his own expense in each apartment. Defendant refused to allow this. Neither apartment complex ever exceeded 300,000 gallons of usage in one quarter. With 20 EDUs, the threshold for the higher consumption rate is exceeded on the 5th day of every billing cycle.

Keith Hill, a licensed professional engineer and consultant, was qualified as an expert in the field of rate schedules establishment and the analysis of rate schedules. He testified that the purpose of defendant’s tiered rate schedule is to promote the conservation of water, a natural resource.

Mr. Durso testified that Mr. McLaughlin can separately meter his apartments, but they would be his sole responsibility as the property owner. The consumption fees, however, would still be based on a single meter rate.

Douglas Rauch, Esquire, defendant’s solicitor, testified that defendant has approximately 2,200 customers. Of those customers, 79 properties are multi-family residential properties, and they are all treated the same in the billing practices. The rates encourage conservation and favor the single-family homeowners. Defendant’s board of directors believed that it was fair to charge more to people who put a greater burden on the system and the treatment plant by requiring more treatment. Defendant’s total revenue would decrease if it would be forced to meter each individual apartment.

Based on this evidence, this court entered the verdict which is the subject of this appeal.

ISSUES

[381]*381Defendant raises the following issues in his concise statement of errors complained of on appeal.

1. Whether this court erred in denying defendant’s post-trial motions.

2. Whether this court erred in entering an amended verdict in favor of plaintiffs.

3. Whether this court erred in finding that defendant’s rates are not established to promote conservation.

4. Whether this court erred in finding that defendant’s rates are not established to promote conservation, where plaintiffs failed to present testimony and/or evidence with respect to said finding.

5. Whether this court erred in finding that defendant’s rates are discriminatory.

6. Whether this court erred in finding that defendant’s rates are unreasonable.

7. Whether this court erred in finding that defendant’s rates are arbitrary.

8. Whether this court erred in failing to find and/ or conclude as a matter of law that the establishment of defendant’s rate structure was arbitrary in nature, in order to upset the same, under Pennsylvania law.

9. Whether this court erred in finding that defendant does not have any regulation concerning the application of consumption charges for multi-unit buildings with single meters.

10. Whether this court erred in finding that defendant’s rates are not reasonably proportionate to the service rendered or readily available for use on owners of multi-unit residences.

[382]*38211. Whether this court erred in finding/concluding as a matter of law that defendant must use the same rate calculation for all residential households for a rate to be reasonable under Pennsylvania law.

12. Whether this court erred in finding/concluding as a matter of law that conservation of water must be essential, if not the only consideration to be evaluated, in the determination of whether defendant’s rates are reasonable.

13. Whether this court erred in finding/concluding as a matter of law that the failure to allow individual metering of a multi-unit facility is de facto unreasonable, under Pennsylvania law.

14. Whether this court erred in failing to consider other evidence presented relating to the reasonableness of the rates, other than simply conservation, in forming its findings/conclusions of law with respect to the reasonableness of the rates.

15. Whether this court erred, as a matter of law, in concluding that defendant’s rates are discriminatory.

16. Whether this court erred, as a matter of law, in concluding that defendant’s rates are unreasonable, as related to services provided.

17. Whether this court erred, as a matter of law, in concluding that defendant’s rates are unreasonable.

18. Whether this court erred, as a matter of law, in concluding that defendant’s rates are arbitrary.

19. Whether this court erred, as a matter of law, in overturning defendant’s rate structure.

20.

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Cite This Page — Counsel Stack

Bluebook (online)
43 Pa. D. & C.5th 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fmrr-development-v-birdsboro-municipal-authority-pactcomplberks-2015.